RapidShare struggles to placate Big Content with anti-piracy plan

RapidShare has tried to distinguish itself from other locker sites with its …

The last year has been a stressful period for online locker sites. Hotfile is currently defending itself from a lawsuit by the Motion Picture Association of America. In January, the federal government shut down Megaupload and indicted its officers. While the courts have yet to decide whether either company is legally responsible for the infringing activities of their users, there's no serious dispute that copyright infringement accounted for a significant fraction of their business.

RapidShare argues that its service is fundamentally different. The company promotes non-infringing uses of its service and actively polices its site for illegal content. On Wednesday, at an event at the National Press Club, RapidShare formalized its anti-piracy stance with a new document. Its "Responsible Practices for Cloud Storage Services" outlines the steps the company takes to fight infringement on its site.

As we'll see, these steps go well beyond the minimum enforcement efforts required to qualify for the Digital Millennium Copyright Act's safe harbor. Yet even RapidShare's aggressive anti-piracy approach has not satisfied piracy hawks like the Recording Industry Association of America. Ars talked to RapidShare General Counsel Daniel Raimer following Wednesday's event.

Beyond the DMCA

Under the DMCA, online service providers who promptly respond to takedown requests, terminate the accounts of repeat infringers, and take certain other steps are legally immunized from liability for the infringing actions of their users. In principle, sites that qualify for the safe harbor don't have to do anything else to police piracy on their network. But RapidShare has chosen to go "above and beyond" what the DMCA requires. It urges other locker sites to do the same.

RapidShare recommends that sites scan incoming files to see if they match the signature of files that had been previously blocked. It suggests that sites avoid compensating users based on download volume unless they have specifically verified that a particular user is the rightful owner of the content being offered for download. And it argues that storage lockers should set files to be private by default in order to avoid inadvertent sharing with the public.

RapidShare recommends that sites invest significant resources hiring employees to police their sites for abuse—RapidShare itself has more than a dozen people in its abuse department. The company advocates training customer service personnel to discourage infringing users from signing up for the service.

RapidShare argues locker sites should offer major content firms automated takedown capabilities to speed up the takedown process. And RapidShare says that "as a last resort," a service provider should—after providing them with advance notice—be prepared to inspect the private files of users who have been accused of infringement and have not offered a satisfactory response.

No presumption of innocence?

One proposal that could raise eyebrows is "termination upon substantial body of accusations without proof of infringement." Ars pressed Daniel Raimer, general counsel of RapidShare, to explain this policy. He stressed that a RapidShare employee would manually review each account termination case, and that accounts would only be closed if the user failed to give a good explanation for repeated takedown notifications. Still, he downplayed the problem of bogus takedown requests.

"We've received plenty of takedown notices and almost all of them were justified," Raimer told Ars. "There are bad takedown notices that turn out to be wrong, but this is the exception and not the rule."

He argued it would be too burdensome for RapidShare to exhaustively investigate every allegation. So if a user receives multiple complaints and doesn't offer a convincing explanation on the first try, he's likely to get the boot.

Hotfile has alleged that Warner Bros. had abused the automated mass-takedown tool supplied by Hotfile to submit numerous bogus takedowns. We asked Raimer if RapidShare had seen similar abuses. He said that—perhaps due to RapidShare's more proactive anti-piracy efforts—RapidShare does not get a significant volume of takedown requests from Warner Bros., and hasn't had problems with automated takedown requests.

RIAA not satisfied

RapidShare's announcement comes almost exactly three months after the Megaupload raid, but Raimer insists the company isn't motivated by fears of becoming the FBI's next target. "This was not a last-minute decision," he said. Some of the policies outlined in the guidelines have been in place at RapidShare for years, he said. RapidShare has been working on its "Responsible Practices" document for at least nine months.

While Raimer declined to criticize specific competitors, he did suggest that RapidShare has distinguished itself with its greater commitment to fighting piracy. Raimer says that about 80 percent of the content RapidShare removes is due to proactive efforts by staff rather than takedown requests.

But the Recording Industry Association of America has a different perspective. "We welcome the fact that RapidShare recognizes that its service is used as an illegal distribution hub for copyrighted material and that it has a shared responsibility to prevent this theft," an RIAA spokesperson told Ars. "Unfortunately the new measures announced fall short if the goal is indeed to meaningfully and effectively reduce the massive amount of copyright theft occurring on its service."

"This is not a debate about a particular technology—legitimate cloud-based services have many beneficial uses—this is about a particular business model," the spokesperson said. "For example, while other file-hosting services provide secure storage for users' files, RapidShare allows unlimited distribution of copyrighted files among millions of anonymous strangers without taking adequate steps to prevent this illegal activity."

The RIAA says it has notified RapidShare of "nearly 200,000 instances where copyrighted music was being freely and illegally distributed."

Of course, the fact that the RIAA wants RapidShare to do more doesn't mean the law requires them to do so. If RapidShare follows the "Responsible Practices" announced on Wednesday, the firm should fit comfortably within the DMCA's safe harbor.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.